MUHAMAD ALIYAR ROWTHER Vs. GNANA AMMAL

JUDGEMENT

(1.) This is an appeal against the judgment of the Subordinate Judge of Trichinopoly, preferred by the plaintiffs, and arises out of a suit brought by them for the recovery of Rs. 8,217-0-5 due on the promissory note (Ex. A), dated 27 July, 1923 and executed by defendants 2 and 3 for Rs. 5,800. The 1 defendant is the father of defendants 2 and 3, whose younger brother is the 4 defendant. Defendants 5 to 9 are the daughters of the 1 defendant. Defendants are all Indian Christians, and according to the plaintiffs case in paragraph 3 of the plaint, the 1 defendant and his sons have been living as members of one family. It is alleged that till about nine years ago all of them were managing the family affairs, but on account of the 1st defendant's old age the 2nd and 3 defendants alone have been managing the affairs of the joint family for nine years before suit. The 4 defendant is said to be doing work for the family under the orders of defendants 2 and 3. The suit promissory note (Ex. A) was executed in consideration of the debts due on the prior promissory notes (Exs. D, C and E). While basing the suit on the promissory note (Ex. A), the plaintiffs seek to make the defendants 1 and 4 also liable thereunder, on the ground that they have been living as members of a joint family of which defendants 2 and 3 are the managing members, the suit debt having been borrowed for the family benefit, and also on the further ground that the suit promissory note was executed by defendants 2 and 3 as agents of defendants 1 and 4 with their knowledge, consent and express authority. The learned Subordinate Judge, after a due consideration of all the standpoints from which the liability of defendants 1 and 4 to 9 was sought to be made out, held that their liability has not been established and accordingly passed a decree against the executants alone, viz., defendants 2 and 3.

(2.) To a family of Indian Christians consisting of a father and sons and also other female members, the incidents of a Hindu joint family recognised by the Hindu Law have no application. This is the view taken in a decision of our High Court reported in Tellis V/s. Saldanha (1886) I.L.R. 10 Mad. 69. The learned Judges are of opinion that coparcenership and the right of survivorship are incidents peculiar to Hindu Law, and that law, so far as it affected Native Christians (who were converts from Hinduism to Christianity), was repealed by the Succession Act. The righi of the managing member of a joint family to contract debts or to alienate joint family property so as to bind the other members of the family in case of pressing necessity or manifest benefit to the family, is one of the rights recognised by Hindu Law, and such a rule of Hindu Law cannot be applied to a family of non-Hindus, though the right already vested under Hindu Law in a member of a joint Hindu family before his conversion to another religion cannot be taken away, in view of the statutory enactment, viz., the Caste Disabilities Removal Act (XXI of 1850), nor can such a right be enlarged by reason of the conversion. The view expressed in Tellis V/s. Saldanha (1886) I.L.R. 10 Mad. 69, that by reason of the Succession Act, the incidents recognised by Hindu Law as appertaining to a Hindu joint family cannot apply to the members of a Christian family converted from the Hindu religion, has been dissented from in a decision of the Bombay High Court in Francis Ghosal V/s. Gabri Ghosal (1906) I.L.R. 31 Bom. 25. The Indian Succession Act, according to the opinion of the learned Judges in the Bombay case, regulated only the rules of law applicable to intestate and testamentary succession and did not affect the other rights and incidents appertaining to a joint family. Their Lordships of the Privy Council have stated in the well-known case of Abraham V/s. Abraham (1863) 9 M.I.A. 195, that upon the conversion of a Hindu to Christianity the Hindu Law ceases to have any continuing obligatory force upon the convert and he may either renounce the old law by which he was bound or he may abide by the old law notwithstanding he has renounced the old religion. Thus it becomes a question of fact in each case whether after conversion the joint family elected to abide by the rules of Hindu Law applicable to a Hindu joint family, in spite of the fact that the rules of law applicable to intestate and testamentary succession should only be the rules recognised in the Indian Succession Act. In the Bombay case, the question whether notwithstanding the conversion to Christianity the family elected to continue as an undivided Hindu family with reference to the acquisition, improvement and enjoyment of property in coparcenership, was treated to be a question of fact which should be decided upon the evidence. That an original member of a Hindu family after becoming a convert to Christianity may elect to retain his interest in the family property on the old footing is stated with approval by the Privy Council in Jogi Reddi v. Chinnabbi Reddi (1928) I.L.R. 52 Mad. 83 at 90 : 56 M.L.J. 165 (P.C). After referring to the divergence of opinion between the High Court of Madras and the High Court of Bombay, the following observation has been made in a decision of the Calcutta High Court in Kulada Prasad Pandey V/s. Haripada Chatterjee (1912) I.L.R. 40 Cal. 407 at 418: If all the members of the family had become Christians, the position, might possibly have been supported that, notwithstanding conversion, they adhered to the old law, and that consequently the rights of coparcenership were not affected by their renunciation of the old religion.

(3.) In the present case, we may observe that there is no specific allegation in the plaint that even after conversion to Christianity the family continued to observe the incidents of coparcenership, survivorship and managership as in the case of a Hindu joint family. All that is stated in paragraph 3 is, that though Christians, the 1 defendant and his sons have been living jointly as, members of one family not as members of a Hindu joint family. It is not known when the members of this family became converts to Christianity, nor is it known whether all of them are descendants of an ancestor who became a Christian convert. There being no allegation or proof that this family continued to adopt the incidents of a Hindu joint family, defendants 2 and 3 cannot be placed in the position of a de jure or de facto manager of a Hindu joint family.